“We are not convinced that the rate of false positive identification is greater with all-suspect arrays, but we are persuaded that the danger that a false positive identification will result in a wrongful prosecution is greater with an all-suspect array, because an eyewitness who is mistaken in an identification will nonetheless point to a suspect in the case and the police will not know that the identification is mistaken,” Justice Ralph D. Gants wrote for the court.

“Unless there are exigent or extraordinary circumstances, the police should not show an eyewitness a photographic array, whether simultaneous or sequential, that contains fewer than five fillers for every suspect photograph,” Gants wrote. “We expect police to follow our guidance to avoid this needless risk.”